United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
before the Court are three motions to suppress evidence,
filed through counsel by Defendant Tommy Dean Bullcoming: (1)
Defendant's Motion to Suppress Evidence Derived from
Illegal Search of Mobile Home (Doc. No. 97), (2)
Defendant's Motion to Suppress Evidence Obtained from the
Illegal Search of the Lexus RX 300 Vehicle (Doc. No. 98), and
(3) Defendant's Motion to Suppress Evidence Derived from
Illegal Search and Seizure of Defendant's Black Bag (Doc.
No. 99). The government has responded in opposition (Doc.
Nos. 104, 105). On September 25, 2019, the Court conducted an
evidentiary hearing on the motions. Defendant appeared
personally and through counsel, Mark L. Henricksen, Susan M.
Otto, and Jeff Byers. The government appeared through
Assistant United States Attorneys Arvo Q. Mikkanen and Mark
R. Stoneman. The Court heard the testimony of Special Agent
Micah Ware of the Bureau of Indian Affairs and Ms. Mia
and received government's exhibit 1 and Defendant's
exhibits 1 through 32. Upon consideration of the evidence and
the parties' arguments, the Court makes its
Defendant's Motion to Suppress Evidence Derived from the
Search of the Mobile Home
moves to suppress evidence obtained from the searches of Ms.
Linda Zotigh's mobile home, located at 305 S. 9th Street,
Hammon, Oklahoma, on Indian land. According to the evidence
received at the hearing, the searches occurred on the morning
of September 7, 2017, during an arson investigation, and
again on September 11, 2017, with the consent of Ms.
Zotigh's daughter Mia Raya. Hr'g Tr. (Doc. No. 136)
56:16-18, 103:1-15. Agent Ware entered the mobile home again
with the consent of Mia Raya on or around September 13, 2017,
to retrieve a knife. Hr'g Tr. 110:14-25, 111:1-14.
motion, Defendant challenges the searches of the mobile home
on the ground that Mia Raya did not possess the authority to
consent to the searches. See Doc. No. 97, at 4-8.
The government submits several arguments in response,
including that (1) Defendant lacks standing to challenge the
validity of the search because he did not have a reasonable
expectation of privacy in the mobile home, (2) Mia Raya's
consent was constitutionally sufficient because, as one of
Zotigh's children and next of kin, Mia Raya had apparent
authority to consent to the search, and (3) the search was
justified by exigent circumstances. See Doc. No.
105, at 10-18, 21-23.
Amendment rights are personal and cannot be claimed
vicariously.” United States v. Valdez Hocker,
333 F.3d 1206, 1208 (10th Cir. 2003). Accordingly,
“[t]he proponent of a motion to suppress has the burden
of adducing facts at the suppression hearing indicating that
his own rights were violated by the challenged search.”
United States v. Eckhart, 569 F.3d 1263, 1274 (10th
Cir. 2009) (internal quotation marks omitted) (quoting
United States v. Allen, 235 F.3d 482, 489 (10th Cir.
2000)). To demonstrate that his individual constitutional
rights were violated by the warrantless searches of the
mobile home, Defendant “must show that he had a
subjective expectation of privacy in the premises searched
and that society is prepared to recognize that expectation as
reasonable.” United States v. Higgins, 282
F.3d 1261, 1270 (10th Cir. 2002) (internal quotation marks
“[t]he text of the [Fourth] Amendment suggests that its
protections extend only to people in ‘their'
houses, ” the Supreme Court has held that “in
some circumstances a person may have a legitimate expectation
of privacy in the house of someone else.” Minnesota
v. Carter, 525 U.S. 83, 89 (1998). The Tenth Circuit has
recognized that, “as a general rule, social guests will
have an expectation of privacy in their host's home,
” and that “an ongoing and meaningful connection
to [the host's] home as a social guest” may confer
“standing to challenge the government's search and
seizure of evidence from the . . . residence.”
United States v. Rhiger, 315 F.3d 1283, 1286-87
(10th Cir. 2003).
case, the evidence showed that Zotigh was the sole owner of
the mobile home. Hr'g Tr. 147:6-14. Zotigh and Defendant
had been in a relationship off and on for around two years
prior to her death. Defendant stayed with Zotigh in her
mobile home during the times they were in a relationship and
stayed with family members during the periods of time in
which they were not. Hr'g Tr. 104:3-12. Even when
Defendant was living with Zotigh, Zotigh did not allow
Defendant to stay in her mobile home when she was out of
town, and Defendant did not have a permanent key to the
mobile home. Hr'g Tr. 28:6-8, 144:16-22, 152:2-5. When
Agent Ware asked Defendant for biographical information
following his arrest, Defendant identified a P.O. box
address. The P.O. box address was also listed as his address
on the Cheyenne and Arapahoe tribes' official list of
tribal members. Hr'g Tr. 29:18-25, 30:1-13. When Agent
Ware asked Defendant where he lived, Defendant responded
something to the effect of “here and there, ”
rather than Zotigh's address. Hr'g Tr. 30:7-8.
evidence further showed that prior to traveling to Arizona on
or around August 31, 2017, Zotigh arranged for Defendant to
stay with her neighbors Wendell and Chris Johnson. Hr'g
Tr. 27:4-25, 28:1-11. While in Arizona, Defendant's
relationship with Zotigh “soured” and Zotigh
stopped responding to his text messages. Hr'g Tr.
28:23-25, 29:1-12. The evidence showed that when Zotigh
arrived back to Hammon, Oklahoma from Arizona, she contacted
Wendell Johnson and asked him to tell Defendant to remove his
belongings and clothing from her mobile home. Hr'g Tr.
31:19-25, 32:1-12. Agent Ware testified that it was evident
from Zotigh's text messages with Defendant and her
communications with Wendell Johnson that her relationship
with Defendant had terminated. Hr'g Tr. 32:15-18.
Defendant's statements to Agent Ware indicating that he
lived “here and there” and did not have a
physical address, coupled with Defendant's acquiescence
to Zotigh's request that he stay with her neighbors while
she was away, substantially undermine Defendant's claim
of a subjective expectation of privacy in Zotigh's mobile
home at the time of the searches. Even assuming, however,
that Defendant did have a subjective expectation of privacy
in the mobile home, the Court concludes that this expectation
of privacy is not “one that society is prepared to
recognize as ‘reasonable.'” Smith v.
Maryland, 442 U.S. 735, 740 (1979) (internal quotation
Defendant may have had an “ongoing and meaningful
connection to [Zotigh's] home as a social guest” at
certain times prior to the searches, Zotigh's termination
of their relationship, her refusal to allow Defendant to stay
in her mobile home while she was away, and her decision not
to give him a permanent key to the mobile home illustrate
that Defendant could not claim an objectively reasonable
expectation of privacy in Zotigh's mobile home as a
social guest at the time the warrantless searches occurred.
Rhiger, 315 F.3d at 1287; see, e.g.,
United States v. Poe, 556 F.3d 1113, 1122-23 (10th
Cir. 2009) (finding the defendant had a reasonable
expectation of privacy in host's home where defendant had
a key and host “never indicated that she did not want
[him] in the house or that he was there without
permission”); United States v. Thomas, 372
F.3d 1173, 1176 (10th Cir. 2004) (finding defendant could
challenge search of aunt and uncle's home when he was
there as a social guest with plans to spend the night and
“his plans were ‘okay' with his aunt and
uncle”); Rhiger, 315 F.3d at 1287 (noting that
in Unites States v. Pollard, 215 F.3d 643 (6th Cir.
2000), the Sixth Circuit found the defendant had a reasonable
expectation of privacy in friend's home in part because
he “was permitted to be in home while owners were
absent”); United States v. Castro, 225
Fed.Appx. 755, 758 (10th Cir. 2007) (explaining that the
Defendant had been “sent packing after assaulting his
girlfriend and thus had no objectively reasonable expectation
of privacy remaining in the apartment . . . at the time of
the raid”); see also United States v. Battle,
637 F.3d 44, 49 (1st Cir. 2011) (“A defendant lacks a
legitimate expectation of privacy in a place . . . when he
does not have permission to be present.”); United
States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996)
(finding no legitimate expectation of privacy in items left
in host's trailer after the host told the defendant to
Zotigh's status as a host terminated at her death, as she
no longer had “ultimate control of the [mobile
home]” and could not “admit or exclude [guests]
from the house as [she] prefer[red].” Minnesota v.
Olson, 495 U.S. 91, 99 (1990). Because a social guest
must have the “permission of his host, ” any
expectation of privacy Defendant may have claimed in the
mobile home as Zotigh's social guest would no longer be
reasonable or legitimate after her death, at the time the
warrantless searches of the mobile home took place.